Section 311 of CrPC provides that the Court may summon any person as a witness, examine any person in attendance, who may not even be summoned as a witness and can recall and re-examine any person already examined, if, in the opinion of Court, evidence of such person appears to be essential to the just decision of the case. It has been held in the leading case of Mohan Lal Shamlal Soni vs Union of India and Another, 1991 AIR 1346 by the Hon’ble Supreme Court of India that-
“Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words ‘to be’ before the word “essential” occurring in the old Section. This section is manifestly in two parts. Whereas the word ‘used’ in the first part is ‘may’ the word used in the second part is ‘shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 8. The second part which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. The very usage of the words such as ‘any court’, ‘at any stage’, or ‘of any enquiry, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.”
CASE LAW BY SINGH LAWYERS
1. Khatta Singh vs. CBI etc. CrR 274 of 2018 and CrR 3592 of 2018
Mr. Navkiran Singh for the petitioner.
Two revision petitions i.e. CRR No. 3592 of 2017 titled as Khatta Singh vs. C.B.I. Chandigarh and others and CRR No. 274 of 2018 titled as Khatta Singh vs. C.B.I. Chandigarh and others, were filed by Khatta Singh through SINGHLAWYERS, challenging the order passed by the learned Special Judge (CBI) Haryana at Panchkula dated 25.09.2017 vide his application under Section 311 Cr.P.C. for his recall as a witness was dismissed.
FACTS: Khatta Singh was an ex-devotee of Dera Sacha Sauda and had been working as a driver on the bus, which was being used by Baba Gurmeet Ram Rahim Singh (hereinafter referred to as ‘Dera Chief’)-respondent No. 1 to travel outside the Dera. He has personal knowledge about the commission of crime and the circumstances which led to the murder of Ranjit Singh and Ram Chander Chhatarpati, a Journalist. On the basis of an order passed by the Punjab and Haryana High Court on 10.11.2003, the matter was referred to the CBI for investigation. Charge-sheet was filed on 30.07.2007. Statement of the petitioner was recorded by Sh. M.Narayanan, Deputy Inspector General of Police, CBI and the Chief Investigating Officer of the case against Dera Sacha Sauda under Section 161 Cr.P.C. on 21.06.2007. Petitioner, thereafter, volunteered and got recorded his statement under Section 164 Cr.P.C. before the Judicial Magistrate, Ist Class, Chandigarh on 22.06.2007. He appeared as a prosecution witness on 11.02.2012 i.e. after a period of almost five years but by then, Baba Gurmeet Ram Rahim Singh being the Dera Head had garnered large following of devotees with political leaders of all parties frequenting the Dera. Dera Chief because of his political and mass clout was provided security guards by the Central Government and the State Governments of Punjab and Haryana, which created a sense of insecurity amongst the people like the petitioner. He, thus, could not come out and speak the truth about the criminal activities indulged in by the Dera Chief and the others inside and outside the Dera premises. However, with the conviction and sentence of the Dera Head in the rape case of sadhvis inside the Dera on 25.08.2017 and he having been confined in jail for a period of 20 years despite unrest and public disorder caused by the followers of Dera, petitioner gained confidence and feeling a sense of security, has gathered strength to speak out the truth before the Court. On creation of a threat-free environment, petitioner moved an application under Section 311 Cr.P.C. for his recall as a witness on 14.09.2017 which was dismissed by the learned Special Judge (CBI) Haryana.
Mr. Navkiran Singh, Counsel for Petitioner while emphasizing upon the power of the Court, which is conferred under Section 311 Cr. P.C. with regard to the recall of the witnesses, he has asserted that the Court has wide powers. He has referred to the various judgments for amplifying the jurisdiction of the Court for exercise of its powers under Section 311 Cr. P.C. of which, primary being Mohanlal Shamji Soni vs. Union of India and another, 1991 (3) RCR (Criminal) 182, where the Hon’ble Supreme Court had summed up the law on the subject. Reference has also been made to the judgment in Mannan SK and others vs. State of West Bengal and another, 2014 (13) SCC 59, Zahira Habibulla H. Sheikh and another vs. State of Gujarat and others, 2004 (2) RCR (Criminal) 836 and a Single Bench judgment of this Court in Khushwinder Singh and another vs. State of Punjab, 2007 (1) RCR (Criminal) 531, where in similar circumstances when an application under Section 311 Cr. P.C. for recalling of witness was moved by the witness himself asserting that he was threatened and was forced to give false evidence and said threat having ceased to exist because of the death of the accused who had threatened him, it would not amount to filling the lacunae in a prosecution case.
Hon’ble High Court of Punjab and Haryana held that-
The trial Court, while passing the impugned orders, appears to have been over influenced by the facts that the trial is old and by allowing the present application, it would further delay the trial. There can be no doubt that the expeditious trial is the right of each person who is aggrieved or is an accused and who is interested in the case but merely because of the delay, justice should not be made the casualty. The primary aim and object of the Court is to do justice which is to punish the guilty and to protect the innocent, which ultimately depends upon the evidence. On considering the facts and circumstances of the present case, this Court is of the opinion that the evidence of the petitioner is essential for the just decision of the case and, therefore, the application deserves to be allowed for the reasons mentioned therein as the truth alone should prevail. In view of the above, these revisions petitions are allowed. Orders dated 25.09.2017 and 06.01.2018 passed by the Special Judge (CBI) Haryana at Panchkula, are hereby set aside. Applications filed by the petitioner-Khatta Singh under Section 311 Cr. P.C. are allowed.